How Amendment to Contracts in Vietnam Can be Made?

Once a contract is made legally, contracting parties shall implement and such contract is respected by third parties. As stated in Civil Code 2015 (“CC”): “Each commitment or agreement that does not violate regulations of law and is not contrary to social ethics shall be bound by contracting parties and must be respected by other entities”. However, in the implementation process, the contract can be amended, which means, rights and obligation of parties can be amended accordingly.

 

Contract Dispute Lawyer in Vietnam

Due to the fact that the contract is result of before agreement, amendment shall follow certain conditions. According to laws, parties may agree to amend a contract. Enterprises need to pay attention to some following issues when amending the contract in the implementation process:

Firstly, entities participating in contract amendment is the matter which enterprises need to notice. Both contract and supplemental agreement are made on behalf of the parties, which means between two juridical persons. In reality, juridical persons only carry out transactions through representatives, it may be legal representative or authorized representative. Therefore, entities participating in contract amendment shall be representative of juridical persons. A civil transaction entered into and performed with a third person by a representative in accordance with his/her scope of authorization shall give rise to rights and obligations of the principal. Regarding consequence of civil transactions made by unauthorized persons or by representatives beyond scope of representation, such civil transactions shall not give rise to rights and obligations of the principal or not give rise to rights and obligations of the principal with respect to that part of the transaction which exceeded the scope of representation, except for any of the following cases: (i) The principal recognizes the transaction or gives consent; (ii) The principal knows it without any objection within an appropriate time limit; (iii) It is the principal’s fault that the other party does not know or is not able to know that the person entering into and performing the civil transaction therewith was unauthorized or beyond his/her scope of representation. In above circumstances, the unauthorized person must fulfill the obligations to the person with which he/she transacted or the obligations owning to the person with which he/she transacted in respect of the part of transaction which is beyond the scope of representation, unless such person knew or should have known that the representative was unauthorized or the scope of representation was exceeded but still transacted. A person having transacted with above representative has the right to terminate unilaterally the performance or to terminate the made civil transaction or to terminate the civil transaction with respect to that part which is beyond the scope of representation or with respect to the entire transaction and to demand compensation for any damage, except that such person knew or should have known that that the representative was unauthorized or the scope of representation was exceeded or the case of which the principal recognizes the transaction or gives consent. If above representatives and the other party in a civil transaction deliberately enter into and perform such transaction and thereby cause damage to the principal, they must jointly compensate for the damage.

Form of agreement on amending contract is the second matter which needs to be taken into consideration. Amendment shall comply with the form of the initial contract. For instance, if the initial contract is made in written, notarized, certified, registered, the amendment shall follow such forms. The form of contract shall be the conditions for its effectiveness in cases where it is provided by law. Therefore, the form of amended contract shall be the conditions for its effectiveness in cases where it is provided by law. In invalid contracts, the general rule is restoring everything to its original state and returning to each other what have received. The condition for the contract of non-compliance with form recognized by the Court’s decision is that one party or the parties has fulfill at least two third of the obligation contract. However, not one party or the parties fulfilling at least two third of the obligation contract will naturally make such contract invalid but there must go through the Court. Specifically, according to request of one party, after fully considering conditions mentioned above, the Court shall make a decision on recognizing the validity of such contract. This principle also applies to contracts amendment. It is important that parties to consult with lawyers at early stage to anticipate matters of dispute and clearly have clauses drafted to avoid potential future disputes.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

 

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The Dispute Settlement Mechanism of WTO

How Does Dispute Settlement Mechanism of WTO Work?

The dispute settlement mechanism of the World Trade Organization (WTO) is a succession of the dispute settlement rules that has been effective for nearly 50 years in the history of GATT 1947. The basic objective of this dispute resolution mechanism is to achieve a positive solution to the dispute. Vietnam is member of WTO therefore it could refer to dispute settlement mechanism of  WTO in dispute against other country member.

 

When a dispute arises at the WTO, the parties will first conduct consultations to come up with a mutually agreed solution to resolve the case (Consultation – the stage of mediation), as  usual in each case there is the participation of third parties (who are members of significant interest and desire to participate in the dispute resolution process), if they feel a significant interest in the case and should be considered by the panel. In the case of an unsuccessful inquiry, a panel of 3 to 5 members will be established and tasked with examining a particular issue in dispute on the basis of WTO rules cited by the claimant’s country.

After the establishment of a panel to review the complaint, the first thing that the panel needs to do is to set a timetable for its proceedings (Article 12.3 of the DSU). The panel procedure usually covers the contents set forth in Article 12 and Annex 3 of the DSU, including certain flexibility to ensure the quality of the report without delaying the proceedings. Setting a timetable helps the parties understand the contents and deadlines for each dispute, helping them be more proactive in presenting evidence, bases and arguments in their submitted documents.

After the hearings take place, the panel will enter the internal discussion phase (deliberation), to review the assessment of relevant legal, practical issues in accordance with the provisions of the WTO, the deliberation must be kept secret. These reports were drafted without the presence of the parties to the dispute, but only according to the content of the information provided and the comments made earlier. Individual opinions of jurors presented in a panel report shall not include the names of speakers of such opinions.

After the final report will be sent to the parties to the dispute within 2 weeks after the panel has concluded the mid-term review. Normally, every report of the panel has very large content, to facilitate the study of review by the appellate body and to quote case law, the report must show the table of contents and paragraphs which are separate numbered in the order of the report. If there is no appeal, the dispute resolution process will immediately go to the implementation stage after the DSB adopts a panel report. If there is an appeal, the case will be reviewed at the Appellate level.

It is important for Vietnam as member of WTO to be aware of the dispute settlement mechanism and fully prepared when having dispute against other country members in international trade dispute matters.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice.

 

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How Foreigners Could Marry Vietnamese Wife?

When a foreigner marrying a Vietnamese, this is cross cultural marriage with challenges and complexity in relationships which could be legally difficult. The Vietnam laws on Marriage and Family on marriage and family relations involving foreign elements provide legal grounds to avoid false marriages to gain citizenship or conduct human trafficking.

 

The following should be taken into consideration when a foreigner marrying a Vietnamese. However due to the complexity, it is suggested family lawyers in Vietnam to be consulted to ensure the correct processes and procedures are carried out in timely manner:

Marriage consultation:

If marriage registration between a foreigner and a Vietnamese belongs one of the following cases, Vietnamese citizen must be consulted by the provincial Marriage Consultancy Center: i) the age gap between two partners is 20 years or more; ii) this is the third marriage of the foreign partner, or the foreign partner has gone through a divorce with a Vietnamese citizen; iii) the partners do not completely understand about the families and backgrounds of each other; about the languages, traditions, customs, cultures, and laws on marriage and families of each other’s country.

After being advised on marriage consultation, Vietnamese citizen will be issued a certificate by Marriage Consultancy Center (hereafter referred to as Certificate) which is part of the application dossier.

When the Vietnamese citizens is fluent in a foreign language or foreigner is fluent in Vietnamese, and  the interviews at the Justice Department show that both sides have an good understanding of family circumstances, personal situation, and the understanding of language, customs, traditions, culture, laws on marriage and family in each country, the Certificate will not be needed.

Submission for marriage registration

One of two parties would submit directly to provincial Department of Justice of province where the Vietnamese citizen applicant resides.  A dossier of marriage registration is prepared including the following papers of each party:

a) The marriage registration declaration (standard form);

b) The papers of marriage status of each party:

Vietnamese shall provide the written certification of marital status issued by the People’s Committee where he/she resides.

Foreigner shall provide the documentary evidence on marital status of foreigners issued by a competent agency of the country of which the applicant is a citizen. In cases where foreign laws do not prescribe the certification of marriage status, it can be replaced by the certification of oath taken by the applicant that he or she concurrently has no wife or husband, in accordance with the laws of those countries; the written certificate of marriage eligibility issued by a competent agency of the country of which the applicant is a citizen (unless laws of this country do not regulate about this document); for foreigners who have already been divorced with Vietnamese citizens at foreign competent agencies, they must submit the written confirmation that the divorce which carried out abroad have been recorded in civil status book as prescribed by law of Vietnam.

c) The medical examination from a Vietnamese or foreign competent health organization, certifying that such person does not suffer from mental diseases or other diseases which make a person incapable to aware or control his/her acts;

d) Copies of personal papers, such as identity card or passport, passport or papers of substitute value such as travel document or residence card;

e) Copies of the household registration book, the temporary residence book (for Vietnamese citizens living in the country); permanent residence card, temporary residence card or temporary residence certificate (for foreigners residing temporarily or permanently in Vietnam).

f) Certificate of Marriage Consultancy Center on marriage to a foreigner that Vietnamese citizens have been given advice for marriage in compulsory cases mentioned above.

All documents provide by parties have to have valuation within 6 months to the date when the dossier is received.

Interviews for marriage registration to a foreigner in Vietnam

Within 15 days as from the date of receiving the complete and valid dossiers as well as fees, the provincial Department of Justice shall have the responsibilities to implement the direct interview at head office for both marriage partners in order to check, clarify personal matter, voluntary marriage and extent of understanding each other of both marriage partners.

If the interview result shows that two parties fail to understand status of each other, the provincial Department of Justice shall make an appointment for re-interview; the next interview shall be performed 30 days after the preceding interview.

In cases there are issues which need to be verified, the provincial Department of Justice dshall carry out necessary procedures to verify.

Certificate of marriage registration in Vietnam

After interviewing both marriage partners, studying and verifying the marriage registration dossiers, opinions of police agencies (if any), the provincial Department of Justice shall report result and propose settlement of marriage registration to submit to provincial People’s Committees for decision, enclosed with 01 set of marriage registration dossier.

Within 05 working days, after receiving the written submission of the provincial justice department together with the marriage registration dossier, the chairman of the provincial People’s Committee shall sign in the certificate of marriage and return dossier to the provincial Department of Justice for holding the ceremony for marriage registration.

In case refusal for marriage registration, provincial People’s Committees shall have a document clearly stating reasons thereof and send it to the provincial Department of Justice in order to notify both marriage partners.

Ceremonies for marriage registration in Vietnam

Within 05 working days, after the Chairman of the provincial People’s Committee signs the marriage certificate, the provincial Department of Justice shall hold ceremony for marriage registration.

The marriage registration ceremony shall be solemnly organized at the office of the provincial Department of Justice. When the marriage registration ceremony is held, both marriage partners must be present. The representative of the provincial Department of Justice shall preside over the ceremony, requesting both parties to state their final intention on voluntary marriage. If they agree to marry each other, the representative of the Department of Justice shall record the marriage in the marriage registers, requesting each party to sign on the marriage certificate, the marriage register and hand over the original marriage certificate to the husbands and wives, each with one certificate.

The marriage certificate shall be valid from the date the marriage registration ceremony is organized as provided. The grant of copies of the marriage certificate from the original registers shall be implemented by the provincial Department of Justice at the requests of the wives or husbands.

Lawyers at ANT Lawyers – Marriage and divorce dispute law firm in Vietnam have experience with registration of marriage, divorce procedures or dispute matters of assets, properties in Vietnam. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529

 

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Conditions for Cancellation of Contract in Vietnam

What are Conditions for Cancellation of Contract?

When entering into a contract, the parties in a contractual relationship always aim for certain interests and purposes. However, in reality, the contract is not always implemented seriously and in good faith. According to Vietnam laws, parties are entitled to cancel the contract to protect rights and interests. Therefore, it is not rare for a party to request to cancel the contract in order not to be bound by the contract. However, it should be noted that the right of cancellation is only applied in some certain circumstances which stipulated by the law. This is to limit arbitrariness of cancelling the contract.

 

 Contract dispute law firm in Vietnam

The basic condition for cancelling the contract is the breach. However, it should be noted that not all breaches of contract will result in cancelling the contract. This is stipulated in both of general law and specialized law. According to Commercial law 2005 (“CL”), the sanction of cancelling the contract is applied in case of breaching act be a condition for the cancellation of the contract as agreed upon by the parties or in case of substantial breach of contractual obligations from a party. Specifically, contractual breach means the failure of a party to perform, to fully or properly perform its obligations according to the agreement between the parties or the provisions of CL. Substantial breach means a contractual breach by a party, which causes damage to the other party to an extent that the other party cannot achieve the purpose of the entry into the contract. Civil Code 2015 (“CC”) also stipulates correspondingly but it uses the term “serious breach”: “A party has the right to cancel the contract and shall not be liable to compensate for damage in the following cases: (i) A breaching act of one party is a condition for the cancellation of the contract as agreed upon by the parties; (ii) The other party seriously violates the obligations in the contract; (iii) Others circumstances as provided by law. Serious violation means the failure to fulfill obligations properly by a party which make the other party cannot achieve the purpose of the entry into the contract”. However, currently there is no specific guidance on identifying the substantial breach of contractual obligations and the serious breach of contractual obligations. Therefore, determining whether a party’s breach is considered as a substantial breach of contractual obligations or a serious breach of contractual obligations will be within the competence of the jurisdiction.

A lawfully concluded contract may be canceld when a party breaches its basic contractual obligations. After cancelling the contract, such contract shall be invalid from the time it is entered into, and the parties shall not have to continue performing their contractual obligations, except for their agreements on their post-cancellation rights and obligations and resolution of disputes. The parties shall have the right to claim benefits brought about their performance of their contractual obligations. If parties have indemnity obligations, their obligations must be performed concurrently. Where it is impossible to make the indemnity with benefits which one party has enjoyed, the obliged party must make the indemnity in cash. Breached parties are entitled to claim damages.

In conclusion, from the regulation of law, it can be seen that nature of contract is to benefit for the parties and not to be canceld. The cancellation is very serious so the contract can only be canceld in some certain conditions. The contract cannot be canceld as a sanction if there is no contract breach. Simultaneously, the party requesting cancellation also needs to know that such request is only accepted if there is enough foundation to affirm that the other party has substantial breach of contractual obligations or the serious breach of contractual obligations.  Parties encountering potential dispute should consult with dispute lawyers in Vietnam for proper resolution.

ANT Lawyers – A Law firm in Vietnam has law offices in Hanoi, Ho Chi Minh City and Da Nang.  The lawyers at each law offices in Vietnam have consistently made valuable and important contributions to our profession through the cases we handled on daily basis to facilitate business transaction or represented our clients to access justice

 

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Restructure the Debt Payment due to Covid-19

On March 13, 2020, the State Bank issued Circular No. 01/2020/TT-NHNN providing guidance for the credit institutions, foreign bank branches to restructure the debt payment, exemption and reduction periods, charge, keep the debt group in support of customers affected by Covid-19 epidemic, which is an important legal grounds to support the economy.

 

Restructure the Debt Payment due to Covid-19

Accordingly, the debt group restructuring is carried out as follows:

Debts which are restructured repayment term are the principal amount and/or interest (including the debt balance of debts within the scope of regulation of Decree No. 55/2015/ ND-CP of June 9, 2015 of the Government on the credit policy for agricultural and rural development (amended and supplemented)), which fully meets the following conditions: arising from lending activities, financial leasing; Arising the obligation to repay the principal and/or interest within the period from January 23, 2020 to the next day after 03 months from the date the Prime Minister announces the end of the Covid -19 epidemic; Customers are unable to pay the debt principals and/or interests on time according to the signed contracts, loan agreements, financial leases due to the decrease in revenue and income due to Covid -19 epidemic.

The debt repayment restructuring shall be carried out in cases where the outstanding debt is still due or overdue for up to 10 days from the due date of payment or due under the contract, financial leasing agreements; or The overdue debt balance in the period from January 23, 2020 to the next day after 15 days from the effective date of this Circular.

Credit institutions, foreign bank branches may decide on rescheduling of repayment of outstanding debts in the above-mentioned cases, based on customers’ requests and assessments of credit institutions, foreign bank branch on the ability to repay the principal and/or interest of the customer in full after rescheduling, in accordance with the influence of Covid -19 service and ensuring the credit institution, the foreign bank branch fails to restructure the debt repayment term for debts in violation of legal regulations and the restructuring time in case of extending an extended repayment period shall not exceed 12 months from the last day of the debt term, finance lease (the time the customer must pay all principal and interest under the signed contract, loan agreement, financial lease).

In addition, credit institutions and foreign bank branches shall decide on the exemption and reduction of interests and fees according to internal regulations for the outstanding debts arising from credit extension activities, except for bond purchase and investment activities for which the principal and/or interest payment is due within the period from January 23, 2020 to the next day after 03 months from the date of Prime Minister announced the end of the Covid -19 epidemic and the customer was unable to pay the debt on time, both principal and/or interest, according to the signed contract or agreement due to the decrease in revenue and income due to the impact of the Covid- 19 epidemic.

This Circular takes effect from the date of signing. From the effective date of this Circular, customers of credit institutions, foreign bank branches, other relevant organizations and individuals will have their debt repayment restructured, exemption and reduction periods, charge, keep the debt group unchanged. The Government has always issued policies, legal documents to support businesses, organizations and individuals to borrow credit during the period of the Covid -19 epidemic, so that they can help businesses as well as the country’s economy to maintain and develop in the future.

ANT Lawyers is a  law firm in Vietnam, recognized by Legal500, IFLR1000. We are an exclusive Vietnam member of Prea Legal, the global law firm network covering more than 150 jurisdictions. The firm provides a range of legal services to multinational and domestic clients. 

 

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